Insights, Resources and Developments

A vote on the Bernalillo County (NM) Sick Leave Ordinance is on the agenda for today’s Board of County Commissioners meeting. The proposed ordinance applies to employers in the unincorporated limits of the County, which excludes the City of Albuquerque.

The County ordinance has the typical PSL architecture: employees accrue PSL at the rate of one hour for every 30 hours worked to a maximum of 56 hours annually. An employee can carryover up to 56 unused hours. It has some nuances, as most PSL laws do. In addition to including a broad definition of “family member,” this ordinance allows an employee to designate an addition individual to care for. It also allows a successful plaintiff to recover liquidated damages equal to “three times the value of the earned sick time accrued.”

While it is always a challenge to handicap the likelihood of a PSL ordinance passing, the stars seem aligned for this ordinance to pass. The five member Board of County Commissioners has four Democratic members., two of whom–the Chair and Vice-Chair–have sponsored this ordinance. I’ll blog tomorrow about the outcome in Bernalillo County today.

To grant an employee more medical leave than the maximum set out in the collective bargaining agreement is an undue hardship under the ADA, according to a decision earlier this month by a federal district court in the Eastern District of Pennsylvania.

The labor contract covering the plaintiff’s employment granted employees up to 90 days of sick leave, after which an employee either had to return to work, be transferred to a light duty position or resign and file for permanent disability.

After taking all of the sick leave granted him under the labor contract, the plaintiff requested an additional week of medical leave. His employer denied the request and terminated plaintiff’s employment. Rejecting the claim that his termination violated the ADA, the court said that allowing the plaintiff to have additional leave would have violated the labor contract and was unreasonable. As a result, the plaintiff was not a qualified individual with a disability.

To ensure fair and uniform treatment, labor contracts include many terms and conditions of employment that apply to all bargaining unit members, without exception. An employer’s obligation under the ADA to provide a reasonable accommodation is, in effect, a duty to make an exception in some situations. The ADA itself provides no guidance to employers about how to reconcile these apparently conflicting obligations. This court’s decision reconciles them by holding that the inflexible leave policy (aka maximum leave policy) in the labor contract trumps the ADA-imposed duty to consider granting additional leave as a reasonable accommodation. However, just as courts have split on the issue of whether an inflexible leave policy applicable to non-union employees violates the ADA, other courts may reconcile an employer’s ADA and labor contract obligations differently than this decision.

While Maine may have been the first state to pass a paid “any reason” leave law, Nevada was a close second. Just a few weeks after the Maine bill was signed, Nevada Governor Steve Sisolak yesterday signed a bill requiring private sector employers with at least 50 employees to allow employees to accrue paid leave which may be used for any reason. The Nevada law is effective January 1, 2020.

The architecture of the Nevada law is similar to that of a typical PSL law minus the definitions related to appropriate use (e.g., family member). Employees accrue .01923 hours of paid leave for each hour of work performed, which amounts to approximately 40 hours annually for an employee who works 40 hours weekly. An employer may limit an employee’s use of paid leave to 40 hours annually. Employees may carryover up to 40 hours of unused paid leave. An employer may choose to front load the leave or use the accrual method. Employers can require employees to use leave in a minimum of four-hour increments and must provide employees an accounting of available paid leave each payday. The law is here.

Temporary, seasonal and on-call employees are not entitled to accrue paid leave. In addition–and this is the provision I suspect many Silver State employers will focus on initially–the law does not apply to an employer who “pursuant to a contract, policy, or collective bargaining agreement, or other agreement, provides employees with a policy for paid leave or a policy for paid time off to all scheduled employees” at the same accrual rate in the law.

That a second state has enacted a PTO mandate suggests that this approach might be the next step in the evolution of PSL laws. A bill is also pending in New York City to require employers to provide employees with paid vacation in addition to the already required paid sick and safe time.

The Albany County (NY) City Council last night rejected a bill that would have required County employers with at least six employees to allow employees to accrue up to 40 hours of paid sick leave annually. The Council vote was 21-17. The bill had been introduced in March 2018.

The termination of a night shift employee who went fishing and boating while on FMLA leave did not violate the FMLA, according to a decision last week by a California federal district court.

The plaintiff had been approved for FMLA intermittent leave. He called out on FMLA for his night shifts on October 19, 20 and 21. The employer had previously denied a request by the plaintiff to take vacation on those three dates.

During the day on October 21, during hours the plaintiff was not scheduled to work, the plaintiff went with co-workers on a pre-planned boating trip. A co-worker made a video at the outing and posted it on Facebook. In the video, according to the decision, the plaintiff said “I’m not out here.”

When the plaintiff’s employer learned of the video, it investigated and then terminated plaintiff for dishonesty for improper FMLA use. In granting summary judgment to the employer, the court rejected the plaintiff’s arguments that the termination violated the FMLA because fishing and boating activities were not inconsistent with his medical condition and the trip did not conflict with his work shifts. The court concluded that the employee did not produce any evidence to suggest that the employer’s termination decision was based on anything but the employee’s dishonesty.

On Monday, Maine Governor Janet Mills signed the Earned Paid Leave Law. While some media describe the law as a PSL law (see, for example, here and here), it is not a PSL law. As noted in my post last week, earned paid leave under this law can be used for any reason. Unlike all other PSL laws, it does not itemize the reasons for which accrued leave can be used.

To use accrued leave, an employee who works for a covered employer (more than 10 employees for more than 120 days in a calendar year), absent an emergency, must give “reasonable notice” of the intent to use earned leave and must schedule that leave time “to prevent undue hardship on the employer as reasonably determined by the employer.” The law takes effect on January 1, 2021.

The Maine law also preempts any political subdivision from enacting an ordinance or other rule regulating earned paid leave. Last month, the City Council in Portland, ME narrowly defeated a traditional PSL bill.

Lawsuits involving inflexible leave policies always get my attention. I have been speaking and writing about such policies for decades. Last year, the EEOC sued Pilgrim’s Pride, alleging that it had violated the ADA by not modifying its attendance and leave policies to accommodate an employee with a disability. Earlier this month, the case was settled for $50,000 and other non-monetary relief.

In its press release about the settlement, an EEOC official stated that “Nearly 30 years after the enactment of the ADA, some employers are still enforcing inflexible attendance policies… This lawsuit is a reminder to employers they have an obligation to make exceptions to attendance policies and provide leave as a form of reasonable accommodation unless doing so would result in undue hardship.”

Underlying the EEOC’s inflexible leave position is the oxymoronic anomaly that an individual who cannot come to work is nonetheless a qualified individual with a disability, defined as one who can perform the essential functions of the position either with or without an accommodation.

Not all courts subscribe to the EEOC’s view of inflexible leave policies. In 2017, the Seventh Circuit not only rejected the EEOC’s inflexible leave position but also held that the ADA does not even govern medical leaves. “The ADA is an antidiscrimination statute, not a medical-leave entitlement…. Long-term medical leave is the domain of the FMLA,” the Seventh Circuit said in Severson v. Heartland Woodcraft, Inc.Continue reading →